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ExxonMobile lawyers swing hard at MTBE additive case

CONCORD - Attorneys for ExxonMobil and the State of New Hampshire derided each other's expert witnesses, presented vastly different estimates of damages and urged jurors to use common sense as they made closing arguments in a historic $263 million product liability trial over the gasoline additive MTBE.

The lead attorney for Exxon Mobil, James W. Quinn of Weil, Gotshal & Manges, an international law firm headquartered in New York City, said the state's case was based on hindsight, scapegoating and money.

ExxonMobil, then Exxon, began adding MTBE to gasoline as an oxygenate in the late 1980s, and then increased the amount of the ether compound in gasoline to comply with EPA clean air standards in the 1990s. Quinn reiterated the oil company's argument that the benefits of MTBE in terms of reducing air pollution from gasoline fumes outweighed the impact on water quality, which he dismissed as minimal.

"The bottom line is that Exxon acted responsibly in using MTBE. We acted in response to government mandates," Quinn told the jury. "We're basically being sued for something we had no choice in."

He argued that the state adopted reformulated gas with MTBE to meet clean air standards, when it had many other options, such as emission testing, and it knew the risks at the time.

"Now they are just trying to run away," he said. "They are looking for a lot of money, and most importantly, they're looking for a scapegoat."

The state's lead attorney, Jessica Grant, with the San Francisco law firm of Sher Leff, said ExxonMobil decided to use MTBE despite its known dangers because it was readily available as a byproduct of the refining process and more economic for the company than buying the safer additive ethanol, which it did not produce.

"ExxonMobil is not a scapegoat," she said. "This is a case about deliberate choices they made."

The state first sued ExxonMobil and 25 other oil companies in 2003, claiming they caused widespread water contamination in the state by distributing gasoline containing MTBE without providing adequate warnings about the dangers posed by the highly soluble chemical, which spreads rapidly in groundwater and is costly to clean up.

"After 10 years and a three-month trial, we ask you to hold Exxon Mobile for the harm they've done this state," Grant said. "They were making decisions based on their economic interests ... knowing all the while the harm this would cause,"

Defense Attorney David Lender said the state vastly overstated the extent of contamination, the clean-up costs and the ExxonMobil market share in New Hampshire.

Grant said the contamination has reached more than 5,000 private wells, and that the cost of cleanup, treatment and future monitoring adds up to more than $800 million. The state estimates that ExxonMobil has nearly 30 percent of the wholesale gasoline market in the state, bringing its share of damages to $236 million.

Lender argued that the clean-up costs are closer to $54 million, and that ExxonMobil only has a 6 percent wholesale market share in New Hampshire.

The trial, which began on Jan. 14, is the longest in state history and is likely to lead to appeals by whichever side loses.